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Bombay High CourtIndian Cases

Govindrao Devabasappa Manthalkar By … vs Apparao Devabasappa Manthalkar By His … on 14 October 1987

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Bombay High Court
Govindrao Devabasappa Manthalkar By … vs Apparao Devabasappa Manthalkar By His … on 14 October, 1987
Equivalent citations: 1987(3)BOMCR493, (1987)89BOMLR507
JUDGMENT

Ashok Agarwal, J.

1. A short question that falls for consideration in this appeal is the nature and scope of the present appeal which is styled as a First Appeal filed under section 72(4) of the Bombay Public Trusts Act, 1950 (in short, “the Act”).

2. A few facts giving rise to the present appeal may be enumerated : The property in dispute is the Ambabai temple also known as Jagadamba temple, situate in House No. 489, City Survey No. 4281, Shukrawar Peth, Sholapur. This temple was originally managed by one Nilabai who claimed to be its owner. She also owned shops around the temple. In the year 1861 she executed a sale-deed (Ex. 75) in respect of the property bearing House No. 489 except the temple which is the subject matter of dispute in the preset proceedings. In 1875 the said Nilabai executed an agreement (Ex. 76) in favour of Ramchander S/o Anandapa whereunder she appointed him as a Pujari giving him the hereditory right of worship. The appellants were the original opponents in the application filed by the respondents No. 2 under section 19 of the Act, for registering the said temple as a public trust property. The appellants who claim to be the successors of Ramchandra in the said enquiry under section 19, claimed the said temple to be their private property. The said application which was numbered as Application No. 181 of 1967 was decided by the Assistant Charity Commissioner on 13th December, 1971 whereby the said temple was held to be the property of public trust. The appellants challenged the said decision by preferring Appeal No. 43 of 1972 under section 70 of the Act but the same came to be dismissed by the Deputy Charity Commissioner by his judgment and order dated 27th June, 1974. The appellants thereafter filed Civil Miscellaneous Application No. 120 of 1974 to the District Court under section 72(1) and the same came to be rejected by the learned Assistant Judge by his judgment and order dated 17th December, 1976.

3. Being aggrieved the appellants filed the present first appeal on 7th February, 1977. By order dated the 10th March, 1977, record and proceedings the case were called for and on receipt of the same, the appeal was admitted on 13th April, 1977. In the meanwhile vide section 37 of the Act of. 104 of 1976, the provisions of section 100 of the Code of Civil Procedure were amended whereby the scope of the second appeal was restricted substantial question of law.

4. Shri Hoshing appearing on behalf of respondent No. 2 original applications as submitted that thought the present appeal has been described as a first appeal it is for all the practical purposes a Second appeal and the appellants would not been titled to challenge the decision of the District Court both on facts and law. Placing reliance upon the provisions of section 76 of the Act, he submitted that the provisions of the Code of Civil Procedure are made applicable to all proceedings before the Court under the Act. The present appeal has been filed after the amendment of section 100 by section 37 of the Act No. 104 of 1976 and hence the nature and scope of the present appeal would be circumscribed by the rigour of section 100 of the Code of Civil Procedure.

5. It is true that section 72(1) of the Act, speaks of an application being filed to the Court to set aside the decision of the Charity Commissioner and it does not speak of an appeal. It is also true that sections 70 and 71 use the use the word ‘appeal’ and a deliberate departure has been made in section 72 by using the word ‘apply’ instead of the word “appeal”. Placing reliance upon the said provisions Shri Katikar for the appellants submitted that the proceedings under section 72 were not in the nature of an appeal and that therefore, when the District Court exercised its jurisdiction it did not exercise appellate jurisdiction but a special jurisdiction under the said section 72. In my view, though the well known word ‘appeal’ has not been used in section 72 the absence of that word cannot be regarded as determinate of the nature of the proceedings. If one considers the scope, ambit and content of the proceedings before the District Court it will have to be held that the District Court would be exercising appellate jurisdiction. The District Court while dealing with an application under section 72(1) was given the power to confirm, revoke or modify a decision of the charity Commissioner and the section did not impose any limitation on this power. In an application under section 72, the entire matter is at large before the District Court and the District Court has complete power to review the decision of the Charity Commissioner either on law or on acts in such manner as it thought proper. Although section 72(1) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the District Court one must look at and consider the real nature of the right that is conferred by the sub-section. In substance the application is intended to set aside the decision of the Charity Commissioner and the District Court must set it aside and give the necessary reliefs to the party ‘aggrieved by that decision. Therefore, in substance there is very little difference between an application contemplated by section 72(1) and the right of appeal against the order of the Charity Commissioner. To decide the present question one must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, I have no hesitation to hold that the proceedings before the District Court under section 72(1) are in the nature of an appeal and that the District Court exercises an appellate jurisdiction while disposing of a matter under section 72(1). Consequently the present appeal through styled as a first Appeal arises out of an order passed by the District Court in appeal and hence the same shall be treated as a second appeal. Once this appeal is treated as a second appeal it shall have to satisfy the requirements of section 100 of the Code of Civil Procedure before inviting this Court to interfere with the said order of the District Court and unless it is shown that the case involves a substantial question of law it would not be open to this Court to entertain the said appeal.

6. I am supported in the view taken hereinabove by certain observations of the Supreme Court in the case of Ramchandra Goverdhan Pandit v. Charity Commissioner of State of Gujarat, , wherein the Supreme Court was considering the scope of Letters Patent Appeal which was filed against the decision of a Single Judge in proceedings under the Act. While considering the said question it had occasion to deal with the scope and ambit of the provisions of section 72(1) as also section 72(4) of the Act. Even otherwise if one considers the nature of the proceedings contemplated by the Act, it could be notice that the application of the present nature is decided by the Assistance Charity Commissioner under the provisions of section 19 of the Act. The decision of the Assistant Charity Commissioner is made appealable under section 70 and that decision in appeal can be further challenged by approaching the District Court under section 72(2) of the Act. In my view the said proceedings before the District Judge itself is in the nature of a second appeal and the present appeal which is contemplated under section 72(4) is indeed in the nature of a third appeal. Since the provisions of the Code of the of Civil Procedure have been made applicable to the present proceedings vide section 76, the provisions of section 100 of the Code of Civil Procedure shall have to be made applicable to the present appeal.

7. Shri Katikar appearing on behalf of the appellants has sought to formulate a substantial question of law by submitting that Ambabai temple which is the subject matter of dispute in the present proceedings was originally owned by Nilabai. She also owned properties surrounding the said temple. She vide her sale deed Ex. 75 executed in the year 1861 sold the entire property except the said Ambabai temple to one Anandappa. She by her agreement Ex. 76 dated 6th July, 1875 nominated Ramchandra, the son of Anandappa to be the Pujari of the said temple. He was given the hereditor rights of Pujari in respect of the said temple. According to Shri Katikar it was only on account of certain execution proceedings that had been adopted against the predecessors of the appellants wherein their property had been attached. That declarations were made that the said temple was not their private property. The said declarations were made not depicting the true facts but only in order to save the said temple from being proceeded against in execution of decrees passed against the said predecessors. In my judgment the aforesaid submissions do not make any substantial question of law so as to justify interference in the present appeal which is being treated as one under section 100 of the Code of Civil Procedure.

8. The learned Assistant Judge in his considered judgment has taken into account the relevant documents such as the agreement Ex. 3 dated 22nd March, 1933 wherein Apparao had been described as a Panch of Ambabai temple and not its owner and Apparao had signed the same as a Panch of the said Ambabai temple; Ex. 4 a rent-note dated 19th November, 1934 wherein Apparao had described himself as a Pujari and had signed as such and had not described himself as an owner; Ex 5 the statement of Apparao dated 22nd May, 1933 before the City Survey Officer wherein he had described the said property as a public property of Ambabai temple and he had described himself as a Vahiwatdar who was performing Pooja Archana etc. He had further asserted that his name was erroneously shown in the city survey record as owner of that property and he prayed for correcting the said entry. He declared that the rental income of the property was being utilised by him for Pooja Archana of the goddess and also for meeting the expenses of the festival like Navratra and that he was not the owner of the said property. The learned Judge also took note of the fact that the appellants had not filed a single document to show how they got title over the disputed property and the temple. It was also inter alia noted that in the partition deed Ex. 45/3, the property in dispute did not figure as one of the properties owned by the joint Hindu family. He also noted that in the pamphlet issued for summoning the meeting of Shivlad Samaj, the present temple was shown as one of the temples owned by Shivlad Samaj. He also noted that the receipt book regarding the collections made by the panchas from the members of the community showed the present temple as belonging to the community. If after taking into consideration the aforesaid documents, the learned Assistant Judge was not inclined to believe the oral testimony of the witnesses examined on behalf of the appellants on the ground that the same were interested witnesses no fault can be found therewith. In this view of the matter the judgment and order of the learned Assistant Judge holding that Ambabai temple also known as Jagadamba temple situate in House No. 489, Shukrawar Peth, Sholapur, to be the property belonging to the public trust will have to be upheld.

9. In the result I find no merit in the present appeal and the same is dismissed. The appellants shall bear the costs of the respondents.